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Human Rights Application of Michael Xystus Tataki [1996] PNGLR 90 (31 May 1994)

PNG Law Reports 1996

[1996] PNGLR 90 - Human Rights Application of Michael Xystus Tataki

[1996] PNGLR 90

N1439

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS; AND

 IN THE MATTER OF AN APPLICATION OF MICHAEL XYSTUS TATAKI

Waigani

Salika J

June 1996

CONSTITUTIONAL LAW - Application for Enforcement of Human Rights - Claims for compensation for alleged breaches of Constitutional rights and freedoms - Allegation of destruction of property by Policemen - Applicant must first show that those rights and freedoms have been infringed - Applicant must further identify the person who infringed his rights.

HUMAN RIGHTS - Application of Enforcement - Alleged breach of constitutional rights and freedom - Destruction of property - Indentification of perpetrators.

Facts

The applicant sought to enforce his Constitutional rights under s 57 of the Constitution. The applicant claimed that his Constitutional rights were infringed when his properties were destroyed by policemen in a police raid on his village. The applicant sought compensation under s 58 of the Constitution.

Held

1.       There are no rules and procedure as to how applications made pursuant to s 57 and 58 of the Constitution are dealt with at this stage.

2.       In the absence of such rules and procedure, the practice pertinent to normal writ of summons and rules of evidence were adopted.

3.       In applications for enforcement of rights and freedoms pursuant to s 57 and 58 of the Constitution the applicant must first prove that his rights and freedoms have been infringed. And second, he must properly identify the person or persons who infringed his rights and freedoms.

Counsel

P Pakop for the applicant.

P Kiele for the defendant.

June 1996

SALIKA J: The applicant claims by way of an “Application for Enforcement of Human Rights” filed on the 31st may 1994. The applicant alleges breaches of Constitutional rights and seeks enforcement of those rights by way of claims for compensation under s 57 and s 58 of the Constitution.

The specific breaches the applicant alleges are:

(a)      Freedom from Arbitrary search and entry of homes and private property.

(b)      Rights to property

(c)      Protection from unjust deprivation of property

The applicant was the Provincial Director and Trainer for a Non-Governmental Organisation programme called Literacy and Awareness Programme in Simbu. He alleges that during a police raid on Friday 30 July, 1993 between 6.30am and 7.30am near Agle Community School, Kundiawa his house and others were burnt down by policemen. He specifically alleges that the First Respondent was the policeman who set fire to his house in front of several eye witnesses.

The only evidence is from the applicant himself. He gave oral evidence and was cross examined on his affidavit which was read and accepted in evidence. His evidence however, is based on what he was told by others. He himself was not present and did not witness the incident. He gave evidence of his house that was burnt, and the properties which were damaged. I accept the evidence in relation to the destruction of the house and the other properties. I cannot as a matter of law accept his evidence as to who destroyed the house and the properties therein.

The eye witness had made statutory declarations as to what happened and who had set fire to the house. The applicant’s lawyer sought to tender those declarations which were objected to by the defence counsel. Those witnesses themselves who had made the declarations were not produced for oral examination. I refused to accept those declarations as evidence.

The defence did not call any evidence.

The applicant’s claim is based on the provisions of s 57 and s 58 of the Constitution. The relevant parts are:

“Section 57    Enforcement of Guaranteed Rights and Freedoms

(1)      A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2)…

(3)      A Court that has jurisdiction under ss (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(4)…

(5)      Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

58.     Compensation

(1)      This section is in addition to, and not in derogation of, s 57 (enforcement of guaranteed rights and freedoms).

(2)      A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

(3)      Subject to ss (4) and (5), damages may be awarded against any person who committed, or was responsible for, the infringement.

(4)      Where the infringement was committed by a governmental body, damages may be awarded either:

(a)      subject to ss (5), against a person referred to in ss (3); or

(b)      against the governmental body to which any such person was responsible, or against both, in which last case the court may apportion the damages between them.

(5)      Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if:

(a)      the action was an action made unlawful only by s 41(1) (proscribed acts); and

(b)      the action taken was genuinely believed by that person to be required by law, but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.”

In seeking to enforce his Constitutional rights and freedoms under s 57 and to claim compensation under s 58, the applicant alleges breaches of s 44 (Freedom from Arbitrary Search and Entry), s 49 (Right to Privacy) and s 53 (Protection from Unjust Deprivation of Property).

The applicant claims that the burning down of his house and the destruction of his property amounts to a breach of those specific constitutional rights and freedoms and he wished to enforce those rights and freedoms under s 57 and s 58 of the Constitution.

As it has been stated, this matter has not come to the court by way of a normal writ of summons. It is an application pursuant to s 57 and s 58 of the Constitution for enforcement of rights and freedoms by a person who is aggrieved by some alleged unlawful acts of policemen. At this point in time there are no rules of practice and procedure as to how such applications should be dealt with. For example, when such an application is made, should the party that is named as the offending party file a defence or should the offending party merely wait until the matter is called up in court? In this case, after the application was filed and served on the offending parties, no defence was filed because there is no requirement to file a defence as there are no rules. The applicant could not apply for orders that are normally available in ordinary writ of summons cases. Does the court apply strict rules of evidence or not? These are some matters that I consider to be important which need to be settled in applications of this nature.

In this case during the trial I adopted the practice of a normal writ of summons trial as regards admission of evidence. Evidence was called and I accepted some and rejected some in accordance with the rules of evidence.

In my view, where a person applies to enforce his rights and freedoms pursuant to s 57 and s 58 of the Constitution, that person must first show that those rights and freedoms, have been infringed by credible testimony. Secondly he must identify positively with proper evidence who it is that infringed his rights and freedoms, because these are serious allegations and also for the reason that in order for him to enforce his rights and freedoms he must identify the person or body that he can enforce those rights against.

While I am satisfied that the applicant’s house and personal property were damaged (photographs shown of the damage), I am not satisfied as to who might have caused the damage. The applicants evidence of who might have caused the damage is hearsay. Purported eye witnesses were not produced and called.

There is no evidence as to who destroyed the applicant’s property. There is some suggestion that it was the police. There is another suggestion that there was a tribal fight and the applicant’s property were destroyed as a result of the tribal fight.

The end result of this is that, I do not know who caused the damage to the applicant’s house and personal properties. While I am satisfied that the applicant’s rights and freedoms have been infringed, I am not satisfied as to who it was that caused the infringement.

I accordingly refuse the application for enforcement of his constitutional rights and freedoms because no one has been identified by proper evidence as to who to enforce his rights against.

Lawyer for the applicant: ICRAF Lawyers

Lawyer for the defendant: Solicitor General